Enhanced interrogation techniques

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Enhanced interrogation techniques, rough interrogation, the Central Intelligence Agency’s interrogation methods, and alternative set of procedures are terms adopted by the George W. Bush administration to describe methods of torture used to extract information from captives, which is purportedly necessary in the War on Terror.^{[1][2][3][4][5]} Despite the euphemism "enhanced interrogation techniques" the International Committee of the Red Cross^[6] the United Nations,^[7] the Commissioner for Human Rights,^[1] the UK House of Commons Foreign Affairs Committee,^[2] Human Rights First (HRF) and Physicians for Human Rights (PFH),^[8]Amnesty International,^[9] Elizabeth de la Vega,^[10] and many other experts classify them to be torture, and also consider the techniques ineffective.^{[3][11][12][13][14][15]} For its use on Canadian citizen Omar Khadr, the government of Canada added the U.S. to a list of countries that employ interrogation methods that amount to torture.^[16]

Although reactions by the administration and its supporters remain ambiguous, former US president Jimmy Carter is among those who publicly stated it is torture in an interview on October 10 2007, "The United States tortures prisoners in violation of international law."^[17] Only a handful of CIA interrogators have had training in the use of enhanced interrogation techniques after U.S. President George W. Bush first authorized them in mid-March 2002.^[18]

Contents 1 History 1.1 Verschärfte Vernehmung 1.2 SERE program 1.3 The War on Terror 1.3.1 Initial program 1.3.2 Legal opinions 1.3.2.1 Unitary Executive Theory 1.3.2.2 Suggested origin of legal opinions 1.3.3 Application on alleged terrorists 1.3.4 Allegations of prisoner abuse 1.3.5 Red Cross reported war crimes 1.3.6 Destruction of evidence 2 Technique details under the Bush administration 3 U.S. State Department position on its use by other nations 4 Legality 4.1 International Law 4.2 US Law 4.3 Ban on Interrogation Techniques 4.4 Request for Special Counsel Probe of Harsh Interrogation Tactics 5 Criticism 6 See also 7 External links 7.1 Articles 7.2 Books 8 References

[edit] History

[edit] Verschärfte Vernehmung

Experts Marty Lederman, H. Candace Gorman, Arthur Bright, Scott Horton and Nat Hentoff have reported that blogger, political commentator and former editor of The New Republic Andrew Sullivan claimed that "enhanced interrogation" bears remarkable resemblance to the techniques the Gestapo called "Verschärfte Vernehmung," for which some of them faced prosecution in Norway after World War II and were "found guilty of war crimes and sentenced to death."^{[19][20][21][22][23][4][24][25][26]} Besides the similarity of the practices, the German term "verschärfte Vernehmung" itself may be translated as "enhanced interrogation". These techniques included the simplest rations, a hard bed, a dark cell, deprivation of sleep, exhaustion exercises, and blows with a stick.

A 1948 Norwegian court case^[27] described the use of hypothermia identical to the reports from Guantanamo Bay. Sullivan and Gorman contend that the defence used by the Nazis for applying the techniques "is almost verbatim that of the Bush administration." Most notably the concept of unlawful enemy combatant is invoked avant la lettre to justify its implementation on "insurgent prisoners out of uniform", and notes the identical logic propagated by John Yoo today.^[19][21] The so called "ticking time bomb scenario", as rationale for allowing torture, had its precursor in the Gestapo's "Third degree" measures.^[24] According to The Christian Science Monitor:

But while the Nazis' interrogative methods were found to be torture, The New York Times writes that the Allies' methods at the time were far more effective and far less abusive than those the United States uses now.^[4]

[edit] SERE program

Main article: SERE

According to Human Rights First:

Internal FBI memos and press reports have pointed to SERE training as the basis for some of the harshest techniques authorised for use on detainees by the Pentagon in 2002 and 2003.^[28]

And Salon stated:

A March 22 2005, sworn statement by the former chief of the Interrogation Control Element at Guantánamo said instructors from SERE also taught their methods to interrogators of the prisoners in Cuba.^[29]

While Jane Mayer reported for The New Yorker:

According to the sere affiliate and two other sources familiar with the program, after September 11th several psychologists versed in sere techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the sere program, as the affiliate put it. “They took good knowledge and used it in a bad way,” another of the sources said. Interrogators and bsct members at Guantánamo adopted coercive techniques similar to those employed in the sere program.^[30]

and continues to report:

many of the interrogation methods used in sere training seem to have been applied at Guantánamo.^[30]

In addition, Stephen Soldz, Steven Reisner and Brad Olson also wrote an article describing how these techniques mimic what was taught in the SERE-program: "the military's Survival, Evasion, Resistance, and Escape program that trains US Special Operations Forces, aviators and others at high risk of capture on the battlefield to evade capture and to resist 'breaking' under torture, particularly through giving false confessions or collaborating with their captors."^[13] Soldz et al., Salon, and Mayer cite the following examples:

1. Prolonged isolation,
2. Prolonged sleep deprivation,
3. Sensory deprivation,
4. Extremely painful "stress positions,"
5. Sensory bombardment (such as prolonged loud noise and/or bright lights),
6. Forced nakedness,
7. Sexual humiliation,
8. Cultural humiliation (such as desecration of holy scriptures),
9. Being subjected to extreme cold that induces hypothermia,
10. Exploitation of phobias,
11. Simulation of the experience of drowning and controlled drowning, i.e., waterboarding.

[edit] The War on Terror

Main article: War on Terror

[edit] Initial program

Following the attacks of September 11, 2001, several memoranda^[31][32] were written, by John Yoo, analysing the legal position and possibilities in the treatment of prisoners. The memos, known today as the "torture memos,"^[33][34] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror.^[35] In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.^[36] Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were officially handed down from the highest levels of the administration, and led an effort within the Department of Defence to put a stop to those policies and instead mandate non-coercive interrogation standards.^[37]

ABC News reported on April 9, 2008 that "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency." The article states that those involved included:

Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.^[38]

[edit] Legal opinions

[edit] Unitary Executive Theory

Further information: Commander-in-Chief, Unitary executive, and War on Terror

At the heart of policies in the War on Terror is the notion that during a time of war the President, in his duty as Commander-in-Chief, with his inherent powers, cannot be bound by law -i.e. Foreign Intelligence Surveillance Act, UN Convention Against Torture, Geneva Conventions- or Congress. Since the primary task of the President, during a time of war, is protecting US citizens, anything hindering him in that capacity -US and international law or even Congress- can be considered unconstitutional.^[39] John Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse, and that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Convention "because treaty interpretation is a key feature of the conduct of foreign affairs".^[40] These views on executive power, known as the unitary executive theory, are controversial since it appears to suggest that the President's war powers place him above any law.^{[40][41][42][43][44]}

[edit] Suggested origin of legal opinions

Horton contends that John Yoo's analysis that the President was not bound by the Geneva Conventions was based upon work by Carl Schmitt.^[34] Examples of arguments used by Schmitt according to Horton:^[34]

1. Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
2. Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
3. The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, though they might have limited application with respect to the Western Allies.
4. Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
5. Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate.
6. In any event, the rules of international law were subordinated to the military interests of the German state and to the law as determined and stated by the German Führer.

Compared to what is known about Yoo's legal advice Scott Horton, historian Heinrich August Winkler, Sandy Levinson, David Abraham and Christopher Kutz see similarities with the writings of Carl Schmitt.^[34] According to legal experts Scott Horton, David Abraham, Ahmad Chehab the concept of the "unitary executive," which lies at the heart of contoversies -i.e. NSA warrantless surveillance controversy, Signing statement (United States), unlawful enemy combatant- seems to be based upon his state of exception.^[34][45]

[edit] Application on alleged terrorists

In December 2007 C.I.A. director Michael V. Hayden stated that "of about 100 prisoners held to date in the C.I.A. program, the enhanced techniques were used on about 30, and waterboarding used on just three."^[46][47]

US Supreme Court Justice Antonin Scalia said on BBC Radio 4 that since these methods are not intended to punish they do not violate the Eighth Amendment to the United States Constitution, barring "cruel and unusual punishment," and as such may not be unconstitutional.^[48]

[edit] Allegations of prisoner abuse

Notwithstanding the suggestion of official policy, the administration repeatedly assured critics that the publicised cases were incidents, and President Bush later stated that:

"The United States of America does not torture. And that's important for people around the world to understand."^[49]

The administration adopted the Detainee Treatment Act of 2005 to address the multitude of incidents of detainee abuse. However, in his signing statement, Bush made clear that he reserved the right to waive this bill if he thought that was needed.^[50]

Over the years numerous incidents have been made public and a UN report denounced the abuse of prisoners as tantamount to torture.^[51]

Several legal analysts — such as Elizabeth Holtzman, Marjorie Cohn, and Human Rights First — have advocated that writing the so-called "torture memos," not preventing or stopping the abuse could result in legal challenges involving war crimes^[52] under the command responsibility.^[53][54] This view was confirmed when the US Supreme Court ruled in Hamdan v. Rumsfeld that, contrary to what the Bush administration advocated, the Third Geneva Convention (regarding the treatment of prisoners) applies to all detainees in the war on terrorism and as such the Military Tribunals used to try suspects were violating the law. The Court reaffirmed that those involved in mistreatment of detainees violate US and international law.^[55]

On May 19, 2006, the UN Committee against Torture issued a report stating the U.S. should stop, what it concludes, is "ill-treatment" of detainees, since such treatment, according to the report, violates international law. It also calls for cessation of the US-termed "enhanced interrogation" techniques, as the UN sees these methods as a form of torture. The UN report also admonishes against secret prisons, the use of which, is considered to amount to torture as well and should be discontinued.^[7]

[edit] Red Cross reported war crimes

Reviewing the book The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, by Jane Mayer, The New York Times reported that:

Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes .....^[6]

and that the techniques applied to Abu Zubaydah

were “categorically” torture,....^[6]

[edit] Destruction of evidence

In December 2007 it became known that the CIA had destroyed videotapes depicting prisoners being interrogated. This was allegedly done to protect the agents' identities from being disclosed. The New York Times reported that according to "some insiders" an inquiry into the C.I.A.’s secret detention program which analysed these techniques "might end with criminal charges for abusive interrogations."^[56] Marty Lederman, Glenn Greenwald, and other commentators suggested these tapes might have revealed serious violations of US and international law, i.e. evidence of torture.^[57] In an Op-ed for the New York Times Tom Kean and Lee Hamilton, chair and vice chair of the 9/11 Commission stated:

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.^[58]

Responding to the so-called "torture memoranda" Scott Horton pointed out

the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”^[34]

Jordan Paust concurred by responding to Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions

it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!^[59]

[edit] Technique details under the Bush administration

According to ABC News^[60], former and current CIA officials have come forward to reveal details of interrogation techniques authorized in the CIA. These include:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.
2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius).
6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner's face and water is poured over them. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

[edit] U.S. State Department position on its use by other nations

Human Rights Watch (HRW) observed that numerous countries engage in activities that are similar to the ones allegedly used by the C.I.A.:^[61]

1. Forced standing
2. Sleep deprivation
3. Exposure to cold
4. Waterboarding

The organisation also reported that:

The U.S. State Department has condemned as torture or other inhuman treatment many of the techniques that have allegedly been used by the CIA in Iraq, Afghanistan, and at secret detention sites in other countries.^[61]

[edit] Legality

[edit] International Law

• The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.^[62]

It also states that:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.^[62]

An order from a superior officer or a public authority may not be invoked as a justification of torture.^[62]

• In 1994, the United States filed a declaration qualifying its compliance with the Convention against Torture. According to the UN Secretary General, the Government of the United States of America said, "... nothing in this Convention requires or authorises legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States."^[63]
• Countries that are signatory to the Universal Declaration of Human Rights agreed that Article 5 prohibits "cruel, inhuman or degrading treatment or punishment."
• Marty Lederman observes that:

Even if some of these techniques are arguably short of legally defined "torture" in some cases, surely they are the sort of "cruel treatment" that the Geneva Conventions prohibit -- particularly when one recalls that those treaties were written largely with Germany's practices in mind. (The techniques might also, at least in many cases, violate the federal assault law and the McCain Amendment, as well.) And therefore the techniques are plainly unlawful -- and a President committed to faithful execution of the law would not authorise their use by the CIA -- whether or not they are subject to the criminal sanctions reserved for "torture" as such.^[25]

[edit] US Law

• In April 2006, in a letter to Attorney General Alberto Gonzales^[64], more than 100 U.S. professors stated unequivocally that waterboarding is torture, and is a criminal felony punishable under the U.S. federal criminal code.
• Senior law enforcement agents with the Criminal Investigation Task Force (CITF) told MSNBC.com in 2006 that they complained inside the Defence Department in 2002 that the "interrogation" tactics used by a separate team of intelligence investigators were unproductive, not likely to produce reliable information, and probably illegal. Unable to get satisfaction from the Army commanders running the detainee camp, they took their concerns to David Brant, director of the Naval Criminal Investigative Service (NCIS), who alerted Navy General Counsel Alberto J. Mora.^[65]. General Counsel Mora and Navy Judge Advocate General Michael Lohr believed the detainee treatment to be unlawful, and campaigned among other top lawyers and officials in the Defence Department to investigate, and to provide clear standards prohibiting coercive interrogation tactics.^[66] In response, on January 15, 2003, Donald Rumsfeld suspended the approved interrogation tactics at Guantánamo until a working group, headed by General Counsel of the Air Force Mary Walker, could produce a set of guidelines. The working group based its new guidelines on a legal memo from the Department of Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, which would become known as the "Torture Memo". General Counsel Mora led a faction of the Working Group in arguing against these standards, and argued the issues with Yoo in person. The working group's final report, was signed and delivered to Guantánamo without the knowledge of Mora and the others who had opposed its content. Nonetheless, Mora maintained that detainee treatment complied with the law since the January 15, 2003 suspension of previously approved interrogation tactics.^[67]
• Elizabeth de la Vega wrote that under Title 18, United States Code, Section 2340, there is no confusion as to whether these techniques constitute torture.

This argument - that a person cannot know whether his conduct falls within the definition of torture unless it is expressly proscribed by Section 2340 - is precisely the one we've heard from Michael Mukasey with regard to waterboarding.^[10]

[edit] Ban on Interrogation Techniques

On February 13 2008 the US Senate, in a 51 to 45 vote, approved a bill limiting the number of techniques allowed to only "those interrogation techniques explicitly authorized by the 2006 Army Field Manual."^[68] The Washington Post stated:

The measure would effectively ban the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.^[69]

President Bush has said in a BBC interview he would veto the such bill^[70][69] after previously signing an executive order that

allows "enhanced interrogation techniques" and may exempt the CIA from Common Article 3 of the Geneva Conventions.^[68]

[edit] Request for Special Counsel Probe of Harsh Interrogation Tactics

On June 8 2008, fifty-six House Democrats asked for an independent investigation, raising the possibility that authorising these techniques may constitute a crime by Bush administration officials. The congressmen involved in calling for such an investigation included John Conyers, Jan Schakowsky, and Jerrold Nadler. ^[71]

The letter was addressed to Attorney General Michael B. Mukasey observing that:

"... information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law."^[71]

The letter continues to state:

"Because these apparent 'enhanced interrogation techniques' were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious."^[71]

According to the Washington Post the request was denied because Attorney General Michael B. Mukasey felt that:

officials acted in "good faith" when they sought legal opinions, and that the lawyers who provided them used their best judgment.^[72]

The article also reported that:

He warned that criminalizing the process could cause policymakers to second-guess themselves and "harm our national security well into the future." ^[72]

[edit] Criticism

A report by Human Rights First (HRF) and Physicians for Human Rights (PFH) stated that these techniques constitute torture. Their press release said:

The report concludes that each of the ten tactics is likely to violate U.S. laws, including the War Crimes Act, the U.S. Torture Act, and the Detainee Treatment Act of 2005.^[8]

According to HRF, PFH and Stephen Soldz et al. medical and psychological literature shows that torture may have "profound long-term negative effects upon individuals, including psychosis, depression, suicidal ideation and/or post-traumatic stress disorder."^[13][8] They also cite the Office of the Inspector General report which concluded that

SERE-type interrogation techniques constitute "physical or mental torture and coercion under the Geneva conventions."^[13]

Also, according to the New York Times:

Experts advising the Bush administration on new interrogation rules warn that harsh techniques used since 2001 terrorist attacks are outmoded, amateurish and unreliable.^[15]

The Washington Post described the report by the Intelligence Science Board:

There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group.^[73]

In an interview with AP on February 14, 2008 Paul Rester, chief military interrogator at Guantanamo Bay and director of the Joint Intelligence Group, said most of the information gathered from detainees came from non-coercive questioning and "rapport building," not harsh interrogation methods.^[74]

[edit] See also

• 2005 CIA interrogation tapes destruction
• Abu Ghraib torture and prisoner abuse
• Bagram torture and prisoner abuse
• Behavioral Science Consultation Teams
• Command responsibility
• Doublespeak
• Human rights abuse
• Iraq prison abuse scandal
• Jus in bello
• Newspeak
• Torture and the United States
• UN Convention Against Torture
• War crimes

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[edit] External links

[edit] Articles

• Brian Ross & Richard Esposito, ABC News, November 18, 2005, "CIA's Harsh Interrogation Techniques Described"

[edit] Books

• Stephen Grey, Ghost Plane: The True Story of the CIA Torture Program (2007)
• Alfred W. McCoy, A Question Of Torture: CIA Interrogation from the Cold War to the War on Terror (2006)
• U.S. Government, Coercive Interrogation: U.S. Views on Torture 1963-2003

[edit] References